September 04, 2014

Leong on Negative Identity

Nancy Leong (University of Denver Sturm College of Law) has posted Negative Identity (Southern California Law Review (September 2015), Forthcoming) on SSRN. Here is the abstract:

This Article examines the social and legal status of “negative identity” — identity marked by indifference or antipathy to something that much of society considers fundamental. As examples of negative identity, the Article considers those who identify as atheist, asexual, single, or childfree.

The Article begins by giving content to negative identity. Atheist, asexual, single, and childfree identity consists of more than merely the respective lack of religion, sexual attraction, partnership, or children. Rather, these negative identities are meaningful to group members, add value to society, and thus deserve legitimacy and respect. Unfortunately, respect is not always forthcoming: negative identity group members experience significant animus, discrimination, and marginalization.

This state of affairs requires legal intervention. I demonstrate that under current law negative identity is under-protected relative to analogous positive identity categories. In many legal contexts, including employment, housing, public benefits, and taxation, members of negative identity groups are treated differently and worse than their positive identity counterparts. Consequently, the Article proposes a broad reevaluation of laws that implicate negative identity. Negative identity deserves the same protection as positive identity against direct discrimination, which I define as worse treatment based purely on hostility to the identity. When negative identity groups indirectly subsidize positive identity groups, legal actors should undertake a holistic inquiry into all relevant factors in order to determine whether the subsidy is justified.

Note: THIS IS A WORKING DRAFT. PLEASE DO NOT QUOTE OR CITE WITHOUT THE EXPRESS WRITTEN PERMISSION OF THE AUTHOR.